Many people believe that if they were partially at fault for the accident, they cannot bring a claim. In New York, that is wrong. New York follows a pure comparative negligence standard under CPLR 1411. Your recovery is reduced by your percentage of fault, but it is not eliminated. A plaintiff who is 20% at fault recovers 80% of their damages. A plaintiff who is 50% at fault recovers 50%. A plaintiff who is 70% at fault still recovers 30%. There is no threshold below which fault bars recovery entirely. This is one of the most plaintiff-favorable negligence standards in the country, and it is a critical feature of New York personal injury law that injured people often do not realize applies to them.
The carrier knows this. The carrier does not raise comparative negligence to try to eliminate your claim entirely — it raises comparative negligence to reduce the amount it has to pay. Every percentage point of fault attributed to you reduces the carrier’s exposure by that same percentage. The carrier’s economic incentive is to maximize the fault attributed to the plaintiff, and it will use every available piece of evidence to do so.
How comparative negligence works in practice
If a jury determines that your total damages are $300,000 and that you were 25% at fault for the accident, your recovery is $225,000 — 75% of $300,000. If the jury finds you were 60% at fault, your recovery is $120,000 — 40% of $300,000. The calculation is straightforward: total damages multiplied by the defendant’s percentage of fault. Every percentage point of comparative negligence attributed to you reduces your recovery by that same percentage.
This is why the liability evidence is as important as the damages evidence — and why the carrier fights to increase your share of fault at every opportunity. A $300,000 case with no comparative negligence is worth $300,000. The same case with 30% comparative negligence is worth $210,000. The difference — $90,000 — is as large as many complete settlements. Moving the comparative negligence needle is one of the highest-value activities in case preparation.
How the carrier argues comparative negligence
The carrier uses every available piece of evidence to argue that you bear a share of the fault. The police accident report (the MV-104) is the starting point — did the officer note any contributing factors on your part? Were you cited for anything? Your recorded statement (if you gave one) — did you say anything suggesting you could have avoided the accident? Witness statements — did anyone describe you as speeding, distracted, failing to observe a signal, or making an improper maneuver? Vehicle damage patterns — does the point of impact suggest you were partially in the wrong lane, crossed the center line, or were in a position you should not have been? Surveillance footage, dashcam video, or traffic camera footage if available.
The carrier’s goal is not necessarily to prove you were primarily at fault — even 10% or 20% comparative negligence reduces the settlement value proportionally. A carrier arguing for 20% comparative negligence on a $500,000 case is arguing to save $100,000. That argument is worth making even if the carrier concedes the defendant was substantially at fault.
Common comparative negligence scenarios in car accidents
A driver who was speeding when the other driver ran a red light. The argument is that if the plaintiff had been traveling at the posted speed limit, the plaintiff would have had more time to react and might have avoided the collision. A driver who was following too closely when the car ahead stopped suddenly — the argument is that the plaintiff should have maintained a safe following distance. A pedestrian who was crossing outside a crosswalk when a driver failed to yield — the argument is that the pedestrian had a duty to cross at designated crossings. A driver who was changing lanes when the other driver made an improper turn — the argument is that the plaintiff should have observed the other vehicle’s turn signal or hesitation.
In each of these scenarios, both parties bear some fault. The question is not whether fault exists on both sides but what percentage each party bears. The evidence — the police report, witness testimony, vehicle damage, traffic camera footage, expert reconstruction — determines the percentages. A case where the plaintiff can show that any contributory fault was minimal or nonexistent has a settlement value much higher than a case where the plaintiff concedes significant shared fault.
How comparative negligence differs from other states
Some states follow a modified comparative negligence rule that bars recovery entirely if the plaintiff’s fault exceeds 50% or 51%. In those states, a plaintiff who is 51% at fault recovers nothing at all. New York does not follow this rule. New York’s pure comparative negligence standard allows recovery at any percentage of fault — including cases where the plaintiff is primarily at fault for the accident.
This means cases that would be worthless in other states may have significant value in New York. A plaintiff who was 60% at fault in a Pennsylvania accident recovers nothing. The same plaintiff in a New York accident recovers 40% of the damages. It also means the carrier cannot use a disputed liability argument to dismiss the claim entirely on comparative negligence grounds — it can only use it to reduce the recovery. The case proceeds to a damages determination regardless of the comparative negligence finding.
Comparative negligence and the serious injury threshold
Comparative negligence and the serious injury threshold under Section 5102(d) are separate issues that both apply to New York car accident cases. The threshold determines whether you can bring a pain and suffering claim at all. Comparative negligence determines how much of your damages you recover if you win on the threshold. A plaintiff who fails the threshold recovers nothing on pain and suffering regardless of the comparative negligence finding. A plaintiff who meets the threshold recovers damages reduced by the comparative negligence percentage. Both issues are litigated in every contested car accident case.
How comparative negligence affects settlement negotiations
The carrier factors comparative negligence into every settlement offer. If the carrier believes you were 30% at fault, the settlement offer is based on 70% of the full damages value. If your attorney can reduce the perceived comparative negligence from 30% to 10%, the settlement value increases by 20% of the total damages — which on a $300,000 case is $60,000. This is why the liability investigation and evidence development are as important as the medical evidence. Moving the comparative negligence number is one of the highest-value activities in case preparation.
The way comparative negligence moves in settlement negotiations is through evidence. Witness statements that support the plaintiff’s version of events. Expert reconstruction that establishes the at-fault driver’s speed and position. Traffic camera footage that shows the sequence of events. Deposition testimony from the defendant that contradicts the defense’s initial liability theory. Each piece of evidence that supports the plaintiff’s liability position reduces the comparative negligence argument and increases the settlement value.
Evidence of plaintiff fault the defense commonly raises
The defense will look for any evidence that the plaintiff contributed to the collision. Cell phone records to show the plaintiff was texting. Surveillance footage to show the plaintiff’s pre-impact driving. Witness statements about the plaintiff’s speed or attentiveness. Black box data from the plaintiff’s own vehicle. Toxicology results if the plaintiff was taken to the hospital. Each of these sources can provide evidence the defense uses to argue comparative fault.
Your attorney should anticipate these arguments and prepare for them. Obtaining the plaintiff’s own cell phone records, reviewing them for the minutes around the accident, and having an explanation ready if there was phone activity is better than being surprised by the records during discovery. The same principle applies to every potential source of fault evidence. Anticipating what the defense will find allows the attorney to address it in context rather than defend it under pressure.
How comparative fault interacts with joint and several liability
New York’s CPLR Article 16 modifies the traditional rule of joint and several liability for non-economic damages. Under Article 16, a defendant whose share of fault is 50% or less is liable for only its equitable share of the non-economic damages. A defendant whose share of fault exceeds 50% remains jointly and severally liable for the full non-economic damages, even if other defendants share fault. Economic damages — medical expenses, lost wages — remain subject to joint and several liability regardless of the fault allocation.
This rule affects strategic decisions about which defendants to pursue and how to frame the comparative fault argument. In a case with multiple defendants, the plaintiff may strategically seek a finding that one defendant bears more than 50% of the fault to preserve joint and several liability against that defendant for the full non-economic damages. The defense, conversely, seeks to apportion fault below the 50% threshold to limit each defendant’s exposure. These strategic considerations are integrated into the overall case theory.
How Schwartzapfel Holbrook addresses comparative negligence
At Schwartzapfel Holbrook, we investigate the liability evidence in every case to minimize the comparative negligence argument. That means obtaining and analyzing the police report, interviewing witnesses, reviewing traffic camera and surveillance footage, examining vehicle damage patterns, and when necessary retaining accident reconstruction experts. Every percentage point of comparative negligence we eliminate increases the client’s net recovery. The carrier argues fault. We develop the evidence that answers it. Liability preparation is not secondary to damages preparation — it is equally important to the outcome.
Schwartzapfel Holbrook / Fighting For You